DHE v Children's Guardian

[2018] NSWCATAD 208

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	DHE v Children’s Guardian [2018] NSWCATAD 208
Hearing dates:	11 April 2018
Date of orders:	06 September 2018
Decision date:	06 September 2018
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	M Hitter, Senior Member P Foreman, General Member
Decision:	(1)   The Respondent’s decision is affirmed.
Catchwords:	ADMINISTRATIVE LAW – child protection – Working with Children Check clearance - whether the Applicant poses a risk to the safety of children.
Legislation Cited:	Administrative Decisions Review Act 1997 (NSW) Child Protection (Working with Children) Act 2012 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Crimes Act 1900 (NSW)
Cases Cited:	AYU v NSW Office of the Children’s Guardian [2014] NSWCATAD 69 Commissioner for Children and Young People v V [2002] NSWSC 949
Category:	Principal judgment
Parties:	DHE (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: J McDonald (Respondent)
File Number(s):	2018/00004539
Publication restriction:	Disclosure of the name of the applicant and the name of any alleged victim or child referred to in the material before the Tribunal is prohibited. Note: the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

REASONS FOR DECISION

Introduction

1. The Applicant (“DHE”) applied for a Working with Children Check (WWCC) Clearance in January 2016 nominating ‘clubs and other bodies providing services to children’. DHE sought a WWCC clearance in order to practice as an instructor in a particular sporting activity, which is referred to in this decision as “the sporting activity”. DHE is also a qualified school teacher and held senior roles including high school principal. A WWCC Clearance was granted by the Children’s Guardian (“the Respondent”) as there were no records to suggest DHE posed a risk to the safety of children.

2. Subsequently the Respondent became aware of an investigation conducted by the Employee Performance and Conduct Unit (EPAC) of the NSW Department of Education (DOE) into an alleged breach of principal/student boundaries by DHE with a 15 year old female student (“P”). The investigation led to the dismissal of DHE from his role as school principal and placing him on the DOE ‘not to be employed register’.

3. DHE commenced proceedings in the Industrial Relations Commission of NSW (the IRC) for relief in respect of unfair dismissal and by way of a public sector disciplinary appeal. DHE told the Tribunal he discontinued both proceedings before they were finalised because of financial pressures but he remains critical of aspects of the investigation undertaken by the DOE.

4. The Respondent conducted a risk assessment pursuant to section 15(1) of the Child Protection (Working with Children) Act 2012 (NSW) (the Act) and determined that DHE posed a risk to the safety of children and cancelled his WWCC Clearance. DHE seeks a review under section 27 of the Act of the Respondent’s decision.

5. The role of the Tribunal is to make the correct and preferable decision having regard to the material before it: section 63 Administrative Decisions Review Act 1997. The paramount consideration is the safety, welfare and wellbeing of children and, in particular protecting them from child abuse: s 4, the Act.

6. The Tribunal has concluded that DHE poses an unacceptable risk to the safety of children for the reasons set out below and affirms the Respondent’s decision to cancel DHE’s WWCC clearance.

The material before the Tribunal

7. The Tribunal was provided with the following material:

1. Application received on 5 January 2018 (A1)

2. Statement by DHE received 23 February 2018 (A2)

3. Bundle of documents filed by DHE received on 23 February 2018 (A3)

4. Document titled “Legal Arguments” dated 9 April 2018 filed DHE (A4)

5. Report dated 22 March 2018 provided by Clinical Psychologist (JO) filed by DHE (A5)

6. Section 58 documents filed by the Respondent received on 2 February 2018 (R1)

7. Further documents filed by the Respondent received on 26 March 2018 (R2)

8. Respondent’s Summary of Legal Arguments received 3 April 2018 (R 3)

9. Information for reporting bodies filed by the Respondent (R4)

10. Table of communication between Applicant and Student filed by the Respondent (R5)

11. Submission Response to Cross-examination and closing statement filed by the Applicant dated 16 April 2018

12. Respondent’s submissions in reply (undated).

8. A hearing was held in Sydney. DHE was present with his wife.

Consideration of the evidence

9. DHE and P met when P’s family became friends with DHE and his family. This came about from a friendship between P’s brother and DHE’s son. P then attended the high school where DHE was principal. DHE also drove P to training sessions for the sporting activity and became her coach. The sporting activity was conducted through a club and included competitions. DHE was therefore a trusted friend of the family, the principal at the school P was attending, and her coach in the sporting activity.

10. DHE began communicating directly with P through emails from about 2014. From about 2015, this extended to text messages and through social media. It was occurring frequently and exclusively between the two of them across these platforms.

11. The Respondent tendered a table called “Communication between Applicant and Student” (“the table”), which summarised much of the communication between them in the period from November 2015 to January 2016 (subject period of communication) although DHE said it did not capture all of it. Most of the communication noted in the table is captured in documentary form (such as print outs of emails and text messages) and their contents are not in dispute. DHE disputes the meaning attributed by the Respondent to some of his messages particularly where the Respondent relies on some of the communication as evidence of DHE trying to isolate P and argue that his conduct amounts to the grooming P for his own satisfaction.

12. It is not disputed that during the subject period of communication, DHE and P exchanged messages frequently (including multiple exchanges in one day and occurring late at night) and containing personal information about each other. There are exchanges about drinking alcohol, P’s thoughts of self-harm, P possibly having eating disorder, and P’s relationship with her father. DHE told P about his feelings towards her, his reliance on her friendship with him, and his need to have P in his life. DHE disclosed aspects of the relationship with his wife, his personal struggles with depression and other personal issues. DHE offered P advice, which the Tribunal considered could have potentially put her at serious risk of harm. He also made disparaging remarks about P’s father and suggested she withhold information from him. The Tribunal is satisfied that DHE’s communication with P through these exchanges was at times highly inappropriate, especially given his position of trust and authority.

13. The extent of the relationship between DHE and P became apparent to P’s family in about late December 2015. P said in her affidavit for the IRC proceedings (P’s IRC affidavit) that she showed her sister and then her aunty some of DHE’s emails and asked if he could get “in trouble” because of them. P’s family made a report to the Police shortly after this.

14. DHE said his wife had been aware of his relationship with P but also around this time DHE’s wife found old messages to P on DHE’s phone, which led to DHE saying to P that he needed to limit their communication. He told P that he and his wife were “sorting through some stuff”. He said they are “okay” but suggested she ask her parents to take her to the sporting activity (rather than him driving her there). DHE said to P “I’ll just be quiet for a while. I’ll need to set some new boundaries”. This suggests DHE’s wife was not aware of the extent of their relationship until she discovered these messages and the evidence suggests she became even more aware of it when the Police then became involved.

15. P’s IRC affidavit states that DHE asked her to delete their emails on about 28 December 2015, which she did after taking screen shots of them.

16. On about 28 December 2015, DHE wrote a letter to P which said: “I feel like I have really fucked things up and I’m sorry. I’m not sorry for me, as I have made some decisions that have come back to bight (bite) me on the bum and I can live with my mistakes. I’m sorry because I have let you down. What happened was that in the process of changing phones over, [DHE’s wife] saw some of our email conversations. They had not gone off my phone”. DHE said he told his wife everything about how they had come to be “so close”. He told P that she [his wife] doesn’t understand how a “43 year old man can be friends with a 15 year old girl. Probably 95% of the population would agree. I know that if it was someone at work that had discovered those emails, I probably would be fighting for my job”. DHE’s letter went on to say that he had initiated their conversations and did not regret it. DHE said to P “I am also very upset because you became my friend. You supported me and listened to my issues. You helped me so much and I may not get that again. You reckon it takes you a while to let people into your life, well it’s taken me 27 years to have a friend like you again”.

17. On about 6 January 2016, DHE and P communicated with each other about deleting their messages. About 2 days later, DHE told P that he had deleted “everything sent from me back to about October. I have also gone through the folders such as sent items and drafts. I think it’s all good. Sorry to do this to you and thanks for trusting my judgment”.

18. P said in her affidavit that the day before she left to go to a camp on about 8 January 2016, she received an email from DHE on a new email account (the “IJ account”). He told P he did this so he can “check” on her. He said to P that he would not be able to check it as often and “my responses won’t be as quick”. As part of a long email to P he said “I don’t think it is practical to be back and forward for long periods of time in conversation. I do miss that but it is probably pushing things a little. What I would like this email to do is to help me to support you as we don’t get much chance to talk at the moment.”

19. P wrote to DHE “after camp we are to stop using this. I fell [feel] so bad and wrong for [DHE’s wife]. As much as [I] like talking and find it amazingly helpful, idk [I don’t know] I have the worst felling [feeling] about it”.

20. While P was at camp DHE and P continued to communicate with each other. P’s IRC affidavit notes that she discovered someone had accessed her email account. She found out that her father had taken her lap top. P said following this she asked DHE to delete her emails. P gave DHE her security details so he could access her email account, which included access to this draft folder. At the hearing DHE denied that he set up a system of communicating with P using the draft emails folder. But there is evidence of them at least intending to exchange messages by leaving them in the draft folder.

21. P’s sister said in her statement to the DOE investigators that when she noticed that DHE and P’s email contact had suddenly stopped, she found messages using the IJ email account that were kept in a draft folder.

22. The messages suggest that both DHE and P recognised their relationship and the communication between them was problematic, and both were aware that it would be the subject of scrutiny and monitoring by their families.

23. Around this time DHE wrote a letter to P, which provides a detailed insight into DHE’s state of mind at the time. He wrote the following: “I’ve been thinking a lot about your (you) said about this emailing. I have to agree. It is not working and the risk is to too high. Unfortunately though, getting rid of this email has ramifications. Some of which I am not ready for. In my time in the last few years, but especially in the last 2 months, I felt that we have developed a really strong friendship. I love you so much, not in a bad way however it just isn’t meant to happen this way. I’m sitting up at (xxx) writing this with tears streaming from my eyes. I’m very emotional at the moment. I’m sorry. You have become my closest friend, someone that I want to tell everything to and someone that I want to know everything about. I have sat for the last week checking the email over and over again, wanting to hear from you. I believe that I have taken it too far, asked too many personal questions and pushed for info that is none of my business. I pretend that I am doing this because I only care about you, however I am wanting you to care about me, and I know that you don’t feel like it is healthy heading this way. Even sitting her [here] writing this, I have the email page open and keep checking it. If I haven’t done this already, I will become obsessive and over burdensome on you and this will hurt our friendship in the end. I haven’t explicitly told you this before, but as I was helping you, you have helped me through an extremely difficult time in my life. You gave me encouragement and positive feedback and made me feel special. Something that I haven’t felt from a friend before. I have also said this before however I have loved helping you. By not emailing however I feel that I will lose that connection with you. You don’t talk much at training and very little at school. I’m scared of leaving you by yourself and not being there when you [need] me. I’m also scared you will withdraw from me completely. Stop coming to [the sporting activity] not talk to me and push me completely out of your life. I desperately don’t want this to happen. For a range of reasons, I need to back off. I need to give you space. One being that I’m becoming obsessed and controlling. We will go back to contact at school and [the sporting activity] however I would like to regularly sit down and talk with you, probably at work and plan, talk, share etc. Can we do this? I fear that I have made things worse and I’m sorry. I will keep the email open for a few more days then maybe I should shut it down after that. Do you think that it would be possible to meet up with you somewhere on Tuesday after 1? I would love to talk about this in person. Please respond to me. I’m sorry for doing this at the end of an emotional and tough week for you. You are probably very tired and this is the last thing you want to deal with. I have had to put my own feeling first in this case. Please don’t exclude me from your life”.

24. DHE was asked at the hearing what he meant when he said “the risk is too high”. He said he was concerned about how it would look to others if their emails were to be discovered. However DHE and P continued to communicate by email on 9, 10 and 11 January 2016. On 12 January 2016, P said in her affidavit that she emailed DHE asking “I’m going running this afternoon should I still go the [xxx] way?” DHE replied “No. had a call today. See you Wednesday”. On the same day DHE emailed P saying “your emails are being watched”. P said that DHE also phoned her and said the Police had called him and he needed to stop communicating with her and delete the email account. P’s affidavit stated that DHE said “Don’t tell the police about this call”

25. The Police interviewed DHE on 12 January 2016. The investigating officers initially concluded that the emails they saw were inappropriate but not of a criminal nature.

26. The Police also interviewed P on 12 January 2016. She told them that DHE had contacted her that day and they had arranged to meet. In P’s IRC affidavit she said “I was really freaking out. I was emotional. I felt sick and I wanted to defend or protect [DHE] as much as I could”.

27. The COPS report said: “It became obvious that the situation was perhaps more serious than initially determined by the original investigating Police”. It also notes that DHE “agreed that it was indeed problematic and line crossing. [DHE] broke down and stated he was embarrassed and concerned about his employment and marriage”. The COPS report concludes that without a disclosure by [P], it was not considered to amount to a Grooming offence “however, there is the very real potential that the relationship could evolve, and in fact has evolved dramatically since August 2015. The Department of Education will be notified and notification to DOCs will be made”.

28. On 14 January 2016, DHE sent an email to the Police to explain his actions. He said P was worried that someone was reading her emails and “asked me to delete everything. She gave me her user name and password and I went in and read and deleted emails”. The Tribunal is satisfied from the evidence that DHE was also concerned about this and took steps to prevent others from reading their emails.

29. DHE’s email to the Police said he found an email in the draft folder, which had upset him. He said “I do not believe that any other draft emails were composed or worked on until the last day after our phone call. I tried to send a generic email to cut off contact however (P’s) responses were confused etc. I went into her email again and there were new drafts where she was getting really worried etc. I think I added stuff and then deleted them all. I can’t remember [whether] the ‘watching emails’ was on the back of that draft or an email. We did not chose draft emails as our form of conversation. What I think may have happened is that I told her that I had gone through drafts and deleted those pertaining to me and she may have seen my comment. I believe that this is the case because the draft that she had set up to read said something along the lines of ‘I hope you see this’”.

30. DHE said he said he withdrew from coaching commitments and did not attend sporting events his son was involved in so as to avoid contact with P.

31. P’s IRC affidavit said they continued to have contact with each other until around June 2016. The Tribunal is not able to make a finding as to whether this had occurred. However, the Tribunal is satisfied that during the period between late December and early January, when DHE’s wife and P’s family became aware of the extent of their communication and then the Police became involved, DHE had been trying to communicate with P in a way that would avoid monitoring and scrutiny because he was concerned about the risk, particularly in relation to his job and his marriage.

32. DHE said to the Police that “throughout the last period of time, when the emailing began seriously, I have known that what I was doing was wrong, but I also justified it with myself saying that I am helping (P), keeping her alive and I am good friends. I know I should have stopped but I became obsessed with helping. In my mind I knew that this relationship or method of emailing was not grooming. However when I received your phone call I panicked and made some silly decisions in the heat of the moment to protect my backside”.

33. DHE said that the consequences of becoming “such a support” to P were becoming clearer to me and this is why “it was so hard to cut it out. This is why I continued to lie to my wife and make another email account. Every time I would try to make the right decision, something would happen and I stupidly would say to myself ‘okay, let’s just get past…And then we’ll be right. It got to the point that I needed to meet her in person and talk face to face. This is always very difficult so I didn’t want anyone to know about it and we really don’t get the chance to talk at [the sporting activity] or when running”.

34. It is clear that DHE was aware his relationship with P was as he has said “wrong”, but he continued and allowed himself to believe that it was “helping” P. The Tribunal found DHE to have had a worrying lack of judgement in the way he related to P but also in the way he justified continuing their relationship despite being aware that it was very problematic. DHE told the Tribunal he did not seek professional advice or support to help him deal with the situation, even after the alarm had been raised by P’s family, DHE’s wife and then the Police.

9. On 15 January 2016, the Police applied on P’s behalf for a Personal Violence Order but the Magistrate was not satisfied it was required and did not make that order. On about 18 January 2016, the DOE directed DHE to have no further contact with P and placed him on alternate duties.

10. The Respondent’s material contains two handwritten notes from DHE, which he agrees he gave to P. The timing of when he gave her these notes is disputed. In the IRC proceedings, DHE said he gave them to P on 16 January 2016, before he was directed to have no further contact with her. In one of the notes it gives a mobile number as a contact for him and says “emails are being watched not sure about drafts. They will talk to you – you can chose to go without parents”.

11. The other note includes the following:

12. “If asked about drafts, act embarrassed “were you actually reading them?

13. Even if it looks like evidence – deny!

14. Has he contacted you? No

15. Have you contacted him? Tried … but don’t know if I got through”

16. Notwithstanding the timing of when DHE gave P this note, it suggests that DHE was enlisting P’s help to protect himself.

17. In a statutory declaration provided by DHE to the Respondent in April 2017 (DHE’s statutory declaration), he said that on 16 January 2016, he was sitting in his car while attending a camp for the sporting activity with his son and P approached him to say that her aunty had “betrayed” her trust. DHE said that P was distressed and he gave her information about where she could get information and help.

18. He said he had no more contact with P until 6 April 2016, when he saw her running one morning. He was worried about her because he thought she should not be running because of an eating disorder, so stopped his car and spoke to her. He said he reported this event to the EPAC the same day. He was subsequently suspended without pay. He said he knew the contact was in breach of the directive but it was “accidental and purely to check on the welfare” of P. The Tribunal makes no finding as to whether this contact was intentional or accidental. DHE’s own account of what had occurred however suggests he did not appreciate the seriousness of the problematic nature of their relationship and the direction to have no further contact with her and was continuing to justify their contact as being beneficial to P.

19. DHE denies the IP addresses suggested to be his, which the Respondent argues are evidence of DHE continuing to communicate with P after being directed to not do so. The Tribunal makes no finding in relation to this.

20. DHE’s statutory declaration describes his commitment to supporting young people through the sporting activity and in education. It is critical of the investigation conducted by the DOE and concerned that the information provided to the Respondent is biased or misrepresents the facts of what had transpired. He describes his role as P’s coach as positive and how he had developed her talents and “at a remarkable pace”, despite her also having many mental health concerns. He said P’s father asked him to “keep a close eye on her” and describes the help he tried to access for her.

21. DHE knew that he was in breach of DOE policy by communicating with P using his work email. He said his relationship with P “eventually became too problematic” because P was “relying too heavily on my support”.

22. DHE suggests that the problematic nature of their relationship was caused by P becoming too reliant on him. However, the evidence suggests that DHE also developed a reliance on P.

23. DHE said he built a “strong rapport” with P because it is vital for athlete and coach and that he would speak quite openly about himself but at no time in any email or any conversation “was there even the slightest hint of sexual connotation or anything else that might be considered grooming”. DHE said “I strongly believe that I was not isolating [P]. I understand that as a result of the families [sic] wishes that I get more involved with her wellbeing and I communicated more, I believe she relied on me more however I carried out consistent actions to try and alleviate this”. He said he encouraged P to make friends through the sporting activity as he did with his other students.

24. DHE sought to shift at least some of the responsibility for the problematic nature of their relationship onto P, and to justify the way in which they were relating as helping her in his role as her coach. This gave the Tribunal the impression that DHE lacked a full appreciation of his own personal gain from the relationship, and how it contributed to his compulsion to continue it and not extricate himself, especially when it became increasingly apparent to him that it was problematic.

25. There is evidence of DHE making disparaging comments about P’s father and encouraging her to not tell him about the extent of their relationship. When P discovered that DHE was communicating by text messages with her father, DHE said to P “This is a little hard. I’m happy to show you the messages next time. I think it’s fair to say that I don’t have a lot of respect for your father. I’m sorry if that upsets you. However to keep you in [the sporting activity] and in my life I have to play some games with him”.

26. And following P expressing thoughts of harming herself to DHE he said “Remember my comment about men think they can fix women’s problems. It’s very hard for me. (And I’m not saying that to make you feel bad). I think I can fix you. I now know that this is true but also untrue. I also want you to know that I care deeply about you, but not in a weirdo, go to jail for 20 years type of way. I’m telling you this because I want you to continue to trust me and allow me to tell you what I really feel. You are a very special young woman”.

And then DHE said “I also need you to not bring this up with your dad. It will just make life difficult for you”.

53. Some of the exchanges between DHE and P occurred late at night. DHE did not think that was problematic. DHE told P that his doctor put him in the “mild to moderate range” of depression and he said to her “I think I just lost my way this year. You have helped me a lot so thanks”. DHE also said to P “I’m glad we are friends. I also don’t always feel like I have someone I can talk too (sic). I’ve never told anyone about going to the doctor or what for. So there you have it. I’m 43 and still have some trouble confiding in people. Looks like you’re the unlucky one”.

54. The Tribunal considers that the way in which DHE was communicating with P was very likely to have given her the impression that she holds a special place in his life. He encouraged her to not confide in her father but instead confide in him. He disclosed personal information that clearly crossed professional boundaries and it was also inappropriate as a trusted adult friend of the family.

55. The concern about DHE’s lack of judgment in relation to his relationship with P is heightened by the comments he made to her when P was referring to a camp where alcohol, cigarettes and drugs were not allowed. He said “are you worried about your alcohol, cigarettes and other drugs, or your meds. If it’s the first 3 just smuggle them anyway. If it’s the last, you may need to smuggle them too!!! Are you even back on them? Something must have happened. Did you get drunk last camp?”

He said “For what it’s worth, I support you not using meds. As long as you can work through the lows. If you can’t, then use the meds until the sun shines a bit brighter for you. You can give them to me. Do they mix well with alcohol?”

DHE told the Tribunal that he had wanted to be a friend to P and not a “father type” figure. However notwithstanding this, the advice he gave her was inappropriate and potentially harmful.

56. DHE consistently maintained he had no sexual feelings towards P and the Tribunal accepts this. However the Tribunal is satisfied that DHE had a degree of personal satisfaction from his relationship with P, apart from the professional or coaching context.

57. The Respondent submits that an objective assessment of DHE’s communication with P is capable of meeting the definition of grooming referring to the NSW Ombudsman’s “Defining Reportable Conduct” fact sheet (Practice Update 2013). The Respondent refers to the Report on child grooming: A Review of the literature (dated January 2017 at p 3) where it is states: “grooming is ostensibly about manipulating someone for the purposes of advantage or personal gain”. The Respondent submits that DHE derived personal satisfaction and enjoyment from his relationship with P. Notwithstanding whether DHE’s conduct can be characterised as grooming, there is evidence that supports a finding that DHE had developed a special relationship with P and although he justifies it in the context of helping P, he also gained personal satisfaction from it and did not want it to come to an end. Even when DHE realised his relationship with P had gone “too far”, in his letter to P he said “please don’t cut me out of your life altogether. Then I would be in despair”.

58. DHE refers to articles about the relationship between a coach and athlete to explain the closeness in the relationship he was trying to develop with P. He quotes from one of them the following: “the emotional tone of the relationship and the degree to which they are connected, the intention to maintain their athletic partnership and the cooperative and effective way in which they communicate are all key concepts that relate to the success of the partnership (Jowett, S., 2005)”. DHE submits that the closeness he was nurturing with P was only in the context of advancing their athlete coach relationship. DHE submits “it seems that all coaches of elite athletes would meet the NSWOO bar of grooming”.

59. The Tribunal does not accept this. There is still a need for appropriate boundaries, which take into account the age and vulnerability of young person or child, and the position of authority held by the adult. The Tribunal considers that DHE did not recognise that aspects of his own conduct were not appropriate, even in the context of an athlete/coach relationship. The Tribunal finds that DHE still does not fully appreciate this.

60. DHE developed an inappropriate relationship with P while holding positions of trust and authority. He sought to continue this relationship after the alarm was raised by DHE’s family and his wife. When the Police and DOE became involved he realised what was at stake, and then took steps to extricate himself. He also took steps to hide the communication between them. In explaining what had transpired, DHE sought to shift responsibility onto P and her dependency on him and to justify it in terms of their athlete/coach relationship. He maintains that his intentions were at all time to help P. While it might have been a factor, the Tribunal is not persuaded that DHE fully appreciates the risk to P that arose from his actions, and the role his own needs and desires played in developing their relationship.

Factors to be considered under the Act

61. The Tribunal must consider the factors set out in Section 30 (1) and (1A) of the Act in determining whether DHE currently poses a risk to the safety of children.

The seriousness of the offences with respect to which the person is disqualified or any matters that caused an assessment and a refusal of a clearance: s30(1)(a)

62. DHE does not dispute he crossed professional boundaries with P. The DOE sustained a finding of misconduct against him and he was dismissed and is now on the ‘not to be employed’ register. These are serious consequences.

63. P was a young person talented in the sporting activity, but who also had significant emotional and psychological difficulties. She was particularly vulnerable and DHE was in a position of trust and authority. This elevates the seriousness of DHE’s conduct.

64. After the alarm was raised by P’s family and DHE’s wife, DHE tried to protect himself and avoid further scrutiny by taking steps to prevent his communication with P being discovered and monitored. This adds to the seriousness of DHE’s conduct.

The period of time since this offence and the conduct of the person since it occurred: s30(1)b)

65. The conduct that gave rise to the Respondent’s risk assessment occurred in the period from August 2015 to January 2016. There is evidence of DHE having contact with P at least on one occasion in April 2016. There is no evidence of any inappropriate conduct since DHE was dismissed in February 2017.

66. These events are relatively recent, which weighs against DHE.

The age of the person at the time of the disqualifying offences; the age of the victim; the difference in age and the relationship between the victim and the person: s 30 (1) (c), (d) and (e)

67. DHE was 43 years and 44 years old at the time of the conduct giving rise to the Respondent’s risk assessment. He is now 46 years of age.

68. P was 15 and 16 years of age. She was vulnerable by virtue of her age but also because of psychological difficulties, which included thoughts of self-harm and an eating disorder.

69. DHE held trusted positions of authority in relation to P.

Whether the person knew that the victim was a child and the person’s present age: s30(1)(f)

70. DHE was aware of P’s age and vulnerabilities.

The seriousness of the person’s total criminal record and the conduct of the person since the offences occurred:s30(1)(h)

71. DHE has had no criminal matters or offences recorded against him.

The likelihood of repetition of the offences or conduct and the impact on children of any such repetition: s30(1)(i)

72. The Respondent acknowledges DHE’s lengthy history as an educator and coach in the sporting activity, and with the exception of the conduct giving rise to the Respondent’s risk assessment, DHE’s child-related employment history is unblemished and positive. This factor weighs in favour of DHE and the Tribunal has taken this into account.

73. However DHE was aware of the need for appropriate boundaries between children and adults, particularly adults in positions of trust and authority. He recognised that if he had come across another teacher engaging in similar conduct he would have reported it. But he judged that his motives and intentions were good. And even when the alarm was raised he continued inappropriately communicating with P, justifying it on the basis that it would be beneficial to her.

74. DHE also inappropriately tells P about his need for her in his life and his own personal struggle in trying to extricate himself from her. DHE has not persuaded the Tribunal that he appreciates and understands the role his own personal motives played in relation to his conduct, which increases the likelihood of this conduct repeating.

75. While DHE has showed some insight in that he said he allowed himself to “slip”, he continues to believe that through his involvement, she “had transitioned from a troubled young teenager to a number one world ranked athlete”. DHE submits their relationship is justified in the context of a coach and athlete. He is critical of the DOE and the Respondent for not taking this into account. The Tribunal considers this to be problematic. The qualities of an athlete/coach relationship do not mitigate the risk posed by the kind of conduct he displayed towards P, particularly given her age and vulnerabilities. The Tribunal found DHE did not fully appreciate the extent to which his conduct placed P at risk. This increases the likelihood of similar conduct recurring.

76. DHE told the Tribunal he was not aware of any particular impact on P arising from his conduct. P’s IRC affidavit states that she thought of DHE as a “father figure” and also felt like she “owed him” because of how well she did at the sporting activity. She said she felt “responsible” for the situation he was in. DHE did not persuade the Tribunal that he fully appreciates or accepts responsibility for the impact his conduct and the events leading up to his dismissal by the DOE has had, or indeed could have had on P. This further suggests DHE has limited insight into this aspect of his conduct and increases the likelihood of the conduct recurring.

77. DHE did not seek any professional advice or assistance at the time. He told the Tribunal that he thought P had “enjoyed having a relationship with me”. DHE said he would not engage in similar conduct again because of the way in which it could be interpreted. The potential impact it could have on the young person does not appear to be a deterrent. DHE expresses his remorse about his conduct, but explained this in terms of the impact it has had on his family and particularly his son, who is still at the same high school.

78. The Tribunal concluded from the evidence given by DHE that he does not appreciate the impact his conduct might have had on P’s psychological well-being.

79. The Tribunal was provided with a report from DHE’s treating psychologist in 2016 (JO’s report). JO consulted with DHE on 8 occasions in 2016. He was referred by his GP for assessment and treatment of his “mood disturbance”. He was assessed to have acute adjustment disorder in response to the significant change in losing his employment. It also notes he consumed alcohol frequently and excessively. JO notes that it is “very difficult to identify” any underlying potential causes that may have contributed to the behaviours that led to his dismissal. He said based on conversations with DHE, his ability to set and maintain strong boundaries “appeared to lapse for unknown reasons”. This is consistent with the Tribunal’s finding of DHE’s own lack of understanding and insight into his personal motives in developing the relationship with P.

80. JO said he had not read the emails exchanged between them but suggests that their shared and extensive involvement in the sporting activity resulted in the “loss of the teacher and student boundary”. JO said based on his consultations, his assessment is that DHE is unlikely to pose a future risk to the safety of children. His assessment is based on what DHE described to him as a circumstance “where he befriended a student through a shared interest of (the sporting activity) and hence the critical professional boundaries were ignored”. He says DHE is acutely aware of his transgression and the “likelihood of relapse is very low”. JO said that the fact that the police found no evidence of grooming behaviours gives him confidence that DHE does not pose a risk to the safety of children. JO also notes DHE does not possess the personality structure that could be deemed a risk to children, such as narcissistic or anti-social traits.

81. The Tribunal finds it can only give limited weight to JO’s report. JO did not have access to the Respondent’s material. DHE said he did not have the Respondent’s material at the time but when he did have it, he said he didn’t like looking at it and did not provide it to JO. He also thought it was not important that JO read the emails. He said he knew he “screwed up” and he was a “put my head in the sand person”. This does not assist DHE gaining further insight into his personal motives and the factors that led him to engage in inappropriate conduct, with particular reference to preventing it from happening again, especially in a sporting context.

82. JO did not apply any formal assessment in relation to risk and his assessment relies only on the history provided by DHE. This limits the weight that can be given to his findings. The Tribunal also has regard to JO recommending that DHE continue therapy, which he did not pursue.

83. The Tribunal concludes there is an unacceptable risk of inappropriate conduct of the kind that occurred in relation to P, recurring with another child or young person, particularly in a sporting context. If this conduct were to recur, it has the potential impact to cause serious harm.

Any information given in, or in relation to, the Application: s30(1)(j)

84. DHE’s wife was present throughout the hearing and DHE refers to the support she has provided to him in his application to the Tribunal. The Tribunal accepts this and it weighs in his favour.

84. DHE provides a number of character and professional references which attest to his good character and history as a coach and educator. The referees note no concern about DHE in the context of child-related employment or witnessing any concerning conduct towards children. The Tribunal has also taken these into account, including a reference from the president of the club where DHE coached the sporting activity, which refers to the conduct giving rise the Respondent’s risk assessment, and saying he is comfortable with DHE’s capacity and competency to coach again.

85. However these factors do not outweigh the other factors that the Tribunal finds leads to DHE posing a real and appreciable risk to the safety of children.

Any other matters that the Children’s Guardian considers necessary: s30(1)(k)

87. DHE’s evidence implicates P and her family for maintaining contact with him and questions the truthfulness of information they gave to the DOE, which in turn was provided to the Respondent. DHE also suggests that evidence provided by one of the detectives investigating his case was not truthful under oath in relation to the application made by the Police for an AVO to protect P. The Tribunal makes no findings in relation to these matters.

Reasonable Person and Public Interest Tests: s30(1A)

88. The “reasonable person test” is a safeguard that applies where the Tribunal is considering a finding that an applicant for a WWCC clearance does not pose a risk to the safety of children.

89. The Tribunal must also be satisfied “that a reasonable person would allow his or her child to have direct contact with the affected person that was not directly supervised by another person while the affected person was engaged in any child related work”; and it is in the “public interest to make the order”: the Act, s 30 (1A).

90. These tests do not need further consideration as the Tribunal has found that DHE poses an unacceptable risk to the safety of children following consideration of the factors set out above.

Conclusion

91. The Tribunal’s jurisdiction is protective and not punitive (AYU v NSW Office of the Children’s Guardian [2014] NSWCATAD 69). In considering whether an applicant is a risk to children, the test to be applied is whether the risk is “real and appreciable” (Commissioner for Children and Young People v V [2002] NSWSC 949). This is an application for review of the Respondent’s decision and neither the DHE nor the Respondent bear an onus of proof.

92. There is no dispute that DHE crossed professional boundaries with P. DHE accepts he “slipped” and did not extricate himself until it was too late. DHE asks the Tribunal to consider this in the context of his unblemished history as a coach and educator. He also states that his intentions were not sexual or sinister in nature and that he was trying to help P. DHE submits that his conduct should be seen in the context of an athlete/coach relationship. He accepts that he will not be able to teach again but wishes to be able to coach. He argues that he would not let a situation like the one that had occurred with P occur again.

93. The Tribunal accepts that DHE did not have any sexual motives in relation to P. However, the Tribunal is satisfied that DHE’s conduct was not driven only by his intentions to help P. There was an element of personal gain and satisfaction, which DHE has failed to fully appreciate and take responsibility for. There is insufficient evidence to persuade the Tribunal that DHE has insight into his own motivations or personal issues in order to be satisfied that he could prevent this conduct from recurring. On this basis the Tribunal finds there is a real and appreciable risk to the safety of children.

94. The correct decision is to affirm the Respondent’s decision to cancel DHE’s WWCC clearance.

95. The Tribunal orders that:

1. The Respondent’s decision is affirmed.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 06 September 2018